A blog about legal issues before the Merit Systems Protection Board for federal employees by lawyers.

07/06/2015

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), in the appeals process. When an appeal is filed these days it is mostly done through the MSPB e-filing process. Basically, the MSPB has moved over the last few years to an e-filing system for federal employee appeals. Our experience in representing federal employees in e-filing issues has generally been positive. The MSPB e-filing process is governed by 5 C.F.R. § 1201.14 Electronic filing procedures.

What is E-Filing?

E-filing at the MSPB is just another method of submitting and receiving documents in relation to a federal employee’s MSPB appeal. The types of documents that can be submitted and received through the MSPB e-filing system include initial appeals, motions, written responses to orders, briefs and petitions for review (appeals). Once a document is filed electronically it is automatically served on all other e-filers (i.e. typically the federal agency’s attorney and that judge). If a federal employee doesn't use the e-filing system, then the documents must be served in other ways (i.e. fax, mail). The e-filing process saves postage, time and typically registers as filed within the e-filing system fairly quickly. The e-filing system can also make the process less formal. One need not submit a formal pleading in certain cases and may choose instead to enter information in the electronic questionnaire.

A Description of the E-Filing Process

Typically, the e-filing process begins with a federal employee or their attorney registering for an account with the MSPB e-filing system. Following registration, the individual may then file their initial appeal electronically with the correct MSPB field office. Users can save drafts of their appeal while it is a work in progress and then file it when it is completed. The administrative judge assigned to the case will then typically issue their Acknowledgment and other initial orders to the parties in the case to all e-filers with copies by mail to those not registered.

Discovery requests and other correspondence between the parties are not typically filed in the e-filing system unless a party is having difficulty with the opposing side and must seek a motion to compel. Following a decision on a motion or on the appeal itself, the MSPB administrative judge will issue the decision which will be electronically served if the parties have elected electronic filing. It is much more efficient to receive these decisions right away rather than waiting for mail delays. Furthermore, if the decision on appeal is adverse then the parties may generally file an appeal through the e-filing process. In general, e-filing makes the MSPB process much more user friendly in our experience.

Conclusion

In sum, registering for e-filing at the MSPB is generally recommended. When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and/or representation. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

06/01/2015

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. In doing so, we have often been called upon to represent federal employees in cases where the facts are either not in dispute or where they are less in dispute than the penalty which is assessed. We often attempt to mitigate proposed removal actions for federal employees to lesser penalties. Often, these types of issues move to the MSPB on appeal.

How Does the Penalty Evaluation Process Come Into Play?

Typically, a penalty analysis comes into play following a decision on the merits of disciplinary charges by a federal agency. If a charge is not sustained against a federal employee then no penalty need be evaluated. If a federal agency decides to sustain some or a portion of the charges, they will also issue a penalty, i.e. suspension, removal, demotion. The penalty analysis will be governed by Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981). In Douglas, the MSPB held that 12 factors (“Douglas factors”) must be considered when evaluating possible penalties for disciplinary cases involving federal employees.

A federal supervisor is responsible for ensuring that a disciplinary penalty is fair and reasonable. If a penalty is disproportionate to the alleged violation or is unreasonable under Douglas, it is subject to being reduced or reversed by the MSPB, even if the charges would otherwise be sustained. As such, it is a federal agency’s duty to determine its penalty in accordance with the Douglas factors. Furthermore, an agency must give “substantive consideration to a lesser penalty.” Banez v. Dep’t of Defense, 69 M.S.P.R. 642, 650 (1996).

When Does the MSPB Mitigate Disciplinary Penalties?

The MSPB mitigates disciplinary penalties when a penalty exceeds the bounds of reasonableness. While penalty selection is generally a matter of federal agency discretion, the MSPB will review a case to ensure that penalty judgment has been properly exercised. The most typical situation is where a federal employee attempts to mitigate the penalty of removal to something less, like a suspension or demotion action.

In making that type of determination, the MSPB must give appropriate weight to the agency's primary discretion in maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility but to insure that management discretion has been properly exercised. SeeBrown v. Dep’t of Treas., 91 M.S.P.R. 60, P 7 (2002). Therefore, the MSPB will only usually disturb the agency's chosen penalty if it finds that the agency failed to weigh relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness. SeeToth v. USPS, 76 M.S.P.R. 36, 39 (1997).

In assessing the appropriateness of a federal agency's penalty selection, the most important factor is the nature and seriousness of the misconduct and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or was frequently repeated. SeeBatts v. Dep’t of Interior, 2006 M.S.P.B. 118, 102 M.S.P.R. 27, P 11 (2006).

The MSPB will modify a penalty when it finds that an agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness. If a deciding official fails to appropriately consider relevant factors the MSPB does not need to defer to the agency's penalty determination. And if the MSPB finds the agency's original penalty to be too severe, it may mitigate it to the maximum reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). The MSPB may also mitigate to the maximum reasonable penalty when the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon the penalty. Cunningham v. USPS, 109 M.S.P.R. 402, P 24 (2008).

Recent samples of MSPB cases mitigating disciplinary penalties.

Some recent examples of mitigation at the MSPB follow:

1. Judy v. DOJ, 2015 MSPB LEXIS 3508 (2015) (removal mitigated to 7-day suspension where administrative judge found that deciding official had not given bona fide consideration to the mitigating factors existing in case).

2. Solis v. DOJ, 2015 MSPB LEXIS 4426 (2015) (removal mitigated to 60-day suspension where administrative judge and Board found that the maximum reasonable penalty was a 60-day suspension in light of the appellant's positive performance record, absence of disciplinary history, cooperation during the agency's investigation, and admission of wrongdoing).

3. Seward v. DOD, 2015 MSPB LEXIS 3954 (2015) (removal mitigated to 60-day suspension where administrative judge found that although the sustained charge of sleeping on duty warranted discipline, when weighed against the mitigating factors of the appellant's years of service, his successful performance rating, his medical condition, and his efforts to correct the effects of that condition on his work, the penalty of removal was beyond the bounds of reasonableness).

4. Edmonds v. VA, 2015 MSPB LEXIS 2424 (2015) (removal mitigated to 14-day suspension where administrative judge found that there was no evidence that the offense was intentional, in addition to the fact that the federal employee had 7 years of prior service, an unblemished disciplinary record, good performance and because the agency’s table of penalties appeared to favor a lesser penalty).

5. Davis v. Dep't of the Navy, 2015 MSPB LEXIS 1917 (2015) (removal mitigated to 30-day suspension where administrative judge found that while federal employee had past discipline, that the agency had not proven all of its charges, and the employee held potential for rehabilitation).

Conclusion

When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and representation. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

03/20/2015

We represent federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov, in the appeals process. In doing so, we have often been called upon to represent federal employees in “mediation” which is a type of hearing or meeting where a federal employee and federal agency attempt to resolve the employee's appeal through settlement.

What is Mediation?

Mediation is just one form of alternative dispute resolution (ADR) which is available to parties in litigation at the MSPB. Mediation is essentially an informal hearing, where both parties use the services of a third party, usually an administrative judge (or other experienced personnel) in order to attempt to resolve a filed MSPB appeal. In other words, the parties try to settle the case before it goes to an administrative judge for a ruling.

How Does Mediation Work at the MSPB?

Typically, the mediation process at the MSPB starts after the filing of an appeal by the federal employee involved. Once the MSPB appeal is filed, then the parties, usually about 5-7 days later will receive what is known as an Acknowledgment Order (Order). Towards the end of the Order will be instructions describing different methods in which the parties may use in order to resolve the appeal outside of receiving a final ruling.

The details for mediation will be listed in detail in the Order. The MSPB mediation program is referred to as the Mediation Appeals Program (MAP). In order for mediation to be a possibility, both parties must agree to attempt mediation. Either party can object to it. Once the parties agree to mediation, the administrative judge hearing the case is notified and the appeal is generally put on hold for a designated amount of time while the parties attempt to reach settlement through mediation. The administrative judge that is assigned to the appeal will typically then refer the case out to a third party mediator assigned by MAP, usually a different administrative judge or other experienced mediator.

Generally, once the referral is made, the original administrative judge will not be involved in mediation efforts, but will hear the case later if mediation ultimately fails and the case comes back to them.

What is a Typical Mediation Session Like?

A typical mediation session can be either held in person, by videoconference or by telephone. We generally recommend in person mediation sessions as it seems that more appeals can be resolved through face to face meetings. The federal employee and the federal agency (usually through their counsel) begin the mediation, usually, by presenting their positions on the appeal to the other side and to the mediator. Typically, the federal employee goes first, followed by the Agency. During this time, the parties may offer specific proposals to resolve a case. A mediator has no ability to force the parties to settle, but is used to try to bring the parties towards settlement. Usually, following opening statements, the mediator will then separate the parties and talk with each party separately and attempt to narrow the ground for settlement.

For instance, a federal employee who has been terminated may ask for reinstatement, backpay and attorney fees as a settlement proposal. In this hypothetical, the mediator would then take this proposal back to the federal agency to discuss. Then, the federal agency may then give the mediator a counter proposal to send back to the federal employee. In this example, the mediator may come back and informed the federal employee that a counter-offer has been made where the federal agency would agree to reinstatement and attorney fees but not back pay. The process continues until the parties decide that they cannot settle or results in an informal agreement.

Following the Mediation Session

Following an informal agreement to settle a case through mediation, the parties then work towards finalizing the agreement in writing. Sometimes, this can be accomplished at the mediation site, but normally the final agreement is completed within the following 2-3 days after the session, when the parties have had the chance to exchange and revise draft written settlement agreements which encompass the terms agreed to at the mediation.

Once the agreement is finalized and signed, the administrative judge assigned to the appeal is notified about the settlement and normally enters a copy of the agreement into the record for enforcement, dismissing the appeal as settled. In the event that the parties are unable to settle, the case will return to the administrative judge and the hearing process will begin again. In sum, the mediation program at the MSPB, in our view, tends to be helpful for cases that have a possibility of settlement. The following link is further helpful information published by the MSPB on the mediation program. MSPB Mediation Guidance.

Conclusion

When a federal employee is involved in the MSPB mediation process, it is important for them to have legal advice and representation in order to facilitate potential settlement of their case. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

02/19/2015

We represent federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov, in the appeals process. In doing so, we have seen a number of federal employees represent themselves before later deciding to retain counsel. As a general rule, it is important for a federal employee to have their own attorney when dealing with a federal agency attorney in an MSPB appeal. While an employee is generally permitted to represent themselves in their own MSPB appeal (pro se), the process is very similar to court proceedings and carries with it a number of legal technicalities and issues that a federal employee must be aware of. Here are some general thoughts on the MSPB process when a federal employee is dealing with an agency attorney.

Before the MSPB Appeal

Before the MSPB appeal, most federal agencies do not assign an attorney to interact with a federal employee involved in a proposed removal or suspension type case (the types that usually go to the MSPB). There are exceptions to this rule; occasionally if the employee retains their own attorney during the proposal stage the agency may appoint an attorney to represent agency interests before the MSPB appeal stage. As a result, a federal employee's case (unless they have their own attorney), is usually assigned to a Human Resources (HR) representative.

Keep in mind that HR works for the agency (management) and not the federal employee involved. They will most often attempt to not answer a federal employee's questions about a pending disciplinary case. It is important to note that HR will very likely share any information that a federal employee provides to them with management. In other words, a federal employee should not consider information provided to an HR representative to be kept in confidence. Furthermore, if the federal employee asks questions of HR personnel about their case, they may provide information that helps the Agency’s position or discourages the federal employee from later pursuing an appeal. In short, a federal employee should not rely on an agency HR or attorney representative for advice regarding their case.

After the Start of the MSPB Appeal

After an MSPB appeal is filed, an agency attorney is typically assigned to represent the agency during the course of an MSPB appeal. Agency attorneys, and their approaches, vary between individual federal agencies and within an individual agency itself. Some agency attorneys can be aggressive with unrepresented federal employees and some can take a more reasonable approach. Either way, it is critical for a federal employee to know that an agency attorney’s client is the federal agency and management, not the employee. The MSPB is an adversarial process where the job of an agency attorney is to prove that the agency was correct in taking action against the federal employee.

General Tips for Federal Employees

1. Retain or Consult with an Attorney: We know that this is a big step for many federal employees. However, it is very important. Federal employees usually come to us following the filing of an MSPB appeal when they start to uncover all that is involved in pursuing such an appeal. It can be overwhelming for many federal employees. Many times the employee has just received a notice that the agency attorney would like to take their deposition or is seeking documents from them and realize that they need an attorney's help. Usually, after the MSPB issues an Acknowledgment Order starting the case, a federal employee realizes the extensive work required to pursue an MSPB appeal.

2. Do Not Volunteer Adverse Information to the Agency Attorney: When a federal employee attempts to interact with an agency attorney in the course of an MSPB appeal, please keep in mind that they generally should not freely provide information that might hurt their appeal. It may seem okay at the time to talk openly with the agency's attorney, but keep in mind that any information learned, if negative, will be used against the federal employee late in the process. It is the agency attorney’s job to represent the federal agency in the MSPB process to the best of their ability.

3. Keep on Top of Deadlines: Deadlines are important in MSPB cases, whether they are for due dates for submitting or responding to discovery requests or due dates for responding to a filing request by the Administrative Judge. Often times a federal employee will assume that an agency attorney will keep them updated on deadlines in a case or will be flexible if the federal employee misses a deadline. Do not assume this to be the case (it generally does not work out that way), because an agency attorney’s job is to represent the agency in the case.

4. Do Not Settle an MSPB Appeal Without Having an Attorney Review the Agreement: It is important for a federal employee to have their own attorney to review a proposed settlement agreement before they sign. The federal employee should obtain an assessment as to the strengths of their case and whether the settlement agreement is reasonable and whether it adequately protects their rights. If the federal employee signs a settlement agreement and then has second thoughts later on it can be very difficult to undo an agreement that has been signed. A federal employee should definitely obtain legal advice before they sign a settlement agreement.

Conclusion

When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation during the course of their appeal. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

11/19/2014

In Merit Systems Protection Board (MSPB) cases, at the hearing stage, the parties will need to use exhibits in order to prove their case. Exhibits are merely documents, recordings or other items which can be used during a hearing to support a federal employee's or agency's case. There are a number of steps in order to utilize exhibits in the hearing process.

Types of Potential Exhibits

The following are some potential examples of possible exhibits for use in an MSPB hearing. These can include all types of written documents, such as letters, reports of investigation, witness statements, policies, notices and emails, among other types of documentation. Exhibits can also include recordings and video evidence.

How Exhibits are Obtained

Typically, the first step in obtaining a potential exhibit (unless the federal employee or agency already has the potential exhibit) is to request it through discovery. For instance, a federal employee may ask for a series of email communications between a supervisor and others relevant to their case through discovery. In this example, once these documents are obtained, they may be able to be used later at the MSPB hearing. Suppose, for example, in a misconduct case an email is produced that shows that the federal employee did not commit the alleged misconduct. The federal employee will definitely want to use that email as an exhibit.

How Exhibits are Introduced

The process of entering an exhibit into the record at the MSPB takes a few steps. Typically, exhibits must be provided by both parties in their pre-hearing submissions to the administrative judge in order to later use them. The MSPB administrative judge will not usually rule on the admissibility (the ability to use) of the exhibits at the pre-hearing conference, but will likely defer that decision to the hearing itself.

When the hearing takes place, the first step to have an exhibit introduced is accomplished by what is known as marking the exhibit for introduction and handing it to the witness. The witness should generally have knowledge (in most cases) about the document that is sought to be introduced in order to authenticate the document. Then, the witness is generally asked some questions such as whether they have seen the exhibit or know what it is. After the witness has confirmed that they know the exhibit (example: an email that they wrote or received), then the party can ask the administrative judge to enter the exhibit into evidence.

Depending on whether the exhibit is objected to by the other side, the judge will rule on the admission of the exhibit. Under 5 C.F.R. § 1201.61, if an administrative judge excludes an exhibit, he or she will describe the evidence intended to be admitted and the description will become part of the record. If admitted, the exhibit becomes part of the record and can be used to support one’s case. If the exhibit is not admitted, and is an important part of a parties’ case, the employee should object in order to preserve the record for a possible appeal.

Conclusion

When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation in developing legal arguments and in introducing potential exhibits in their appeals. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

10/22/2014

The Merit Systems Protection Board (MSPB) requires the reversal of a personnel decision where a federal agency commits harmful error which significantly impairs a federal employee’s rights. When a federal employee is able to show that the application of the agency’s procedures were not in accordance with statute, rule or regulation, the MSPB may order a reversal. Jones v. Dept of Treas., 93 M.S.P.R. 494, 499 (2003). In order for a harmful error to result in reversal, however, it must substantially impair the federal employee’s rights.

Specifically, in order to prove harmful procedural error, a federal employee must prove that (1) the agency committed an error in the application of its procedures; and (2) that the error is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence of the error. 5 C.F.R. § 1201.56(c)(3). In these types of cases, the burden of proof is on the federal employee to show that the agency committed the error and that it was harmful (i.e. that the error caused substantial prejudice to his/her rights).

Examples of Harmful Procedural Error

The following are some potential examples of possible harmful procedural error cases:

A. The agency proposes removal against a federal employee and the employee attempts to respond to the proposed removal. However, the deciding official refuses to review the response and then removes the employee without having reviewed the response.

B. A federal employee is proposed for removal. The deciding official hears the federal employee’s response and arrives at a decision not to remove the employee. The agency decides, rather than issue the decision, to replace the deciding official who then removes the employee. This can be harmful procedural error.

C. The agency sustains a proposed removal on grounds other than those alleged in the proposed removal.

Need to Show Harm

In order to succeed in alleging harmful procedural error, a federal employee has to prove harm and that the error would have likely caused the federal agency to reach a different conclusion. Turner v. U.S. Postal Service, 85 M.S.P.R. 565, ¶ 5 (2000) (reversal where deciding official admitted removing federal employee for actions not listed in proposed removal); and Canary v. U.S. Postal Service, 2013 M.S.P.B. 25 (2003) (reversal where replacement of deciding official violated agency rules and where original deciding official would not have sustained the removal). In order to show harm, the federal employee needs to show a substantial violation of law, rule or regulation which can be shown to be grounds for a different result.

Conclusion

When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation in developing legal arguments, such as harmful error, in their appeals. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

08/01/2014

During the course of a Merit Systems Protection Board (MSPB) appeal it is very important for federal employees to request documents, recordings, video and/or electronic data from their federal gency as part of their discovery efforts. Discovery is the legal process in which a federal employee can legally require a federal agency to turn over information which could be helpful to the federal employee in pursuing a successful MSPB appeal. The federal agency involved also has the opportunity to seek discovery from a federal employee for information relevant to such appeals.

Types of Documents an Appellant can Seek

There are a number of type of items which can be sought from a federal agency in the course of an MSPB appeal through discovery. These are generally referred to as “Production of Documents and Things” requests (Production Requests) under 5 C.F.R. § 1201.72 (c). Production Requests can include requests for copies of relevant electronic mail messages, policies, memorandums, correspondence, audio or video recordings, and copies of investigative reports, when they are relevant to a federal employee’s MSPB appeal. For instance, in disciplinary actions for federal employees we often request copies of email messages between supervisors or investigators connected with a disciplinary investigation. Sometimes it may be possible to uncover bias which was the root cause of a disciplinary action (and not the misconduct alleged) or other issues which can be instrumental in defending a federal employee in the MSPB appeals process.

A Few Examples of Production Requests

The following are a few examples of how Production Requests can be used at the MSPB:

Example 1: Federal employee is removed from federal employment for allegedly assaulting another federal employee in the agency lobby.

Production Request: A Production Request could include a request for a copy of all videotape footage of the federal agency’s lobby area during the date of the incident, a copy of all statements taken of witnesses to the event (not just those provided at proposed removal stage) and any investigation summary or report prepared.

Example 2: Federal employee is removed from federal employment based on alleged dishonesty during an investigative interview.

Production Request: A Production Request could include a request for a copy of any video or audio recordings of the interview, any transcripts made, a copy of all of the questions asked by the investigators, and any summary, notes, emails or documents prepared by the investigator which references the interview.

Production Request: A Production Request could include a request for a copy of all witness statements taken by investigators as to the alleged sexual harassment, a copy of all recordings made of these interviews, and a copy of all emails generated or received by the complainant which reference the alleged sexual harassment.

General Thoughts

In general, it is important for a federal employee before the MSPB to take advantage of the discovery process by utilizing Production Requests. The amount of information that one can uncover through this process can make all the difference in pursuing a successful appeal. A federal employee should not be under the impression that they have received all of the information available just because their federal agency had previously provided them wiht documents at the proposal stage (e.g. during a proposed removal).

A federal agency is only required, during the proposed action stage (prior to a final decision by the agency) to provide an employee with the materials they have relied upon in proposing the action. This is not the same as providing a federal employee with all important information relevant to the case. For instance, an agency might provide a federal employee with all of the witness statements that demonstrate misconduct in a proposed removal case, but not other witness statements that are helpful to the employee and disprove the conduct. This is one of the most important reasons that a federal employee should seek information through the discovery process at the MSPB.

Conclusion

When facing the MSPB discovery process, it is important for a federal employee to have legal advice and representation during the process. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry Facebook Page.

06/04/2014

Federal employees often ask us what happens during an actual hearing before the Merit Systems Protection Board (MSPB). A hearing, especially for an unrepresented federal employee, can be a daunting process. This article focuses on what federal employees can expect during a typical MSPB hearing.

Location of the Hearing

Typically, the MSPB hearing takes place with the administrative judge either attending in person or by video-teleconference. The location for an in-person hearing is typically wherever the MSPB has its local offices. However, the hearing site might also be located at the employee’s work site. If the hearing is conducted remotely, then the hearing is likely to be conducted at the Agency’s closest video-teleconference location. In such a case, it is typical that all parties, witnesses and attorneys will be present at the Agency location and the administrative judge will be the only individual located in a remote location.

Before the Hearing Starts

Before the MSPB hearing begins, the administrative judge will usually ask the parties whether there are any outstanding issues before the hearing begins. Typically, there are not, but issues could have arisen involving exhibits or witnesses which need to be resolved before the hearing starts. In addition, the administrative judge may swear in all of the witnesses at the same time (or individually as they testify) and then sequester the witnesses (keep them in a room outside of the hearing) until their testimony is heard.

Hearings are generally open to the public unless the administrative judge, in their discretion, believes that it would be better to close off either the entire hearing or a portion of it. This decision will be made prior to the start of the hearing. In addition, before the hearing starts, the court reporter hired by the MSPB will set up his/her equipment and prepare to record the legal arguments, statements, objections and rulings that will occur during the hearing.

Opening Statements

Following the introductory issues, the administrative judge may permit the parties to present opening statements. Sometimes, the administrative judge does not permit opening statements (especially if time is a concern and there are numerous witnesses). If permitted, opening statements typically last about 10-20 minutes for each party. The Agency’s attorney will usually proceed first because they hold the burden of proof (in disciplinary cases). Then, the Appellant (or Appellant’s attorney) will have the opportunity to respond with an opening statement then or at the beginning of their case.

The Actual Hearing

Following opening statements, the main portion of the MSPB hearing typically begins. The Agency will call their witnesses in their case first. Then the federal employee (referred to as the “Appellant” in an MSPB case) or their attorney will have the opportunity to cross-examine each of these witnesses. When the Agency’s witnesses have been questioned by both parties, the next step in the hearing process is for the Appellant to call their witnesses.

Once the witnesses have all been questioned, there is the possibility for rebuttal evidence to be presented. Rebuttal does not occur in every case, but there is sometimes testimony or issues that arise during the course of a MSPB hearing that require another witness (or require the parties to recall a previous witness) to testify. For instance, if the last scheduled witness in a hearing testifies, unexpectedly, that a prior witness had lied in their testimony, it would be important to recall the earlier witness through rebuttal in order to respond.

Closing Statements or Briefs

Once all witness testimony has been concluded, the next step is generally to present closing arguments. Again, the Agency will usually proceed first in disciplinary cases and then the Appellant will proceed after that. Sometimes, if a case has involved a lot of testimony, is complex in some manner or requires legal arguments to be presented to the administrative judge, the parties may submit closing briefs instead of closing arguments. After the closing arguments or closing briefs have been submitted, the record is considered closed and the case is ready for a decision by the administrative judge.

After the Hearing

While the timeline for a decision is variable, a decision from an MSPB administrative judge has tended to take anywhere from 2 days after the hearing to 60 days. Usually, the final decision is issued somewhere around the 30-45 day mark, in our experience. If the final decision is positive for the federal employee, the next step may be to enforce the terms of the decision. The Agency may also decide to appeal the decision. If the Agency is successful in the initial decision, the federal employee may appeal the adverse decision to the full MSPB Board, which consists of a 3-person panel which oversees the MSPB.

Conclusion

When facing the MSPB process, it is important for a federal employee to have legal advice and representation during the process. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

04/07/2014

In our representation of federal employees before the Merit Systems Protection Board (MSPB) one of the major issues that we come across involves whether or not a federal employee has been provided with due process in the processing of a disciplinary or adverse action. This is very important because when due process has not been properly provided to a federal employee, a federal agency’s final decision can be potentially reversed at the MSPB.

Federal Employee’s Right to Due Process

Generally, before a federal employee can be disciplined for alleged misconduct or performance deficiencies, they are entitled to due process of law. The core of due process for disciplinary actions consists of (1) notice of the misconduct or performance issues; and (2) the opportunity to respond to these issues. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).A federal employee must be given a meaningful opportunity to invoke the discretion of the decision maker before a personnel action is finalized. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985).

Due Process Right to Information Relied Upon by a Federal Agency

A federal agency, if asked by a federal employee, must provide copies of all information relied upon in the processing of a disciplinary action in order to prepare for their response to the proposed action. Many federal agencies provide this type of information as a matter of course when they issue a proposed disciplinary action. However, many do not. This is why it is usually very important, prior to the oral and/or written response to the proposed action for a federal employee to formally request all of the materials relied upon by the agency in proposing the action. If a federal employee does not do so, then it can be hard to determine exactly what information that the deciding official considered in issuing a final decision.

If a federal agency considers important information in a case that is not provided to a federal employee this fact can be the basis for possible reversal of the action at the MSPB. New information, not provided to a federal employee is often called “ex parte communications.” The U.S. Court of Appeals for the Federal Circuit has held that ex parte communications that introduce new and material information about a federal employee’s case to a deciding official constitute a due process violation. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999).

Due Process Necessary for Douglas Factors

The U.S. Court of Appeals for the Federal Circuit, in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) held that information not provided to an employee regarding penalty determinations (under the Douglas factors) were also subject to due process:

“Ex parte communications that introduce new and material information whether material to the merits of the underlying charge or material to the penalty to be imposed, violate due process. There is no constitutionally relevant distinction between ex parte communications relating to the underlying charge and those relating to the penalty.”

This type of issue can come into play where the federal agency issues a decision on a proposed disciplinary action, citing an increased disciplinary penalty based upon information that was not provided to a federal employee prior to the oral and written response stages. For example, we have seen cases where a federal employee was given a more significant disciplinary penalty for having a past disciplinary record which was not mentioned in the proposed action. This can be reversible error.

Conclusion

Our law firm advises and represents federal employees in MSPB appeals. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.